| Delaney v Town of Islip |
| 2009 NY Slip Op 04369 [63 AD3d 658] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Bernard Delaney et al., Respondents, v Town of Islip,Appellant. |
—[*1] Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Suffolk County (Whelan, J.), dated October 8, 2008, which deniedits motion for summary judgment dismissing the complaint, and granted the plaintiffs' crossmotion for leave to amend their notice of claim.
Ordered that the order is affirmed, with costs.
The defendant Town of Islip enacted an ordinance which provides, in relevant part, that nocivil action shall be maintained against it for injuries sustained by reason of a street defect unlessprior written notice of such condition was actually given to the Town Clerk or the Commissionerof Public Works, and the Town failed to repair it within a reasonable time thereafter (seeTown of Islip Code § 47A-3; Town Law § 65-[a]; Nixdorf v East IslipSchool Dist., 276 AD2d 759 [2000]; Tramontano v County of Suffolk, 239 AD2d407 [1997]). The Town's ordinance, however, does not set forth any requirements for thespecificity of the notice of a street defect. Accordingly, since prior notice laws are in derogationof common law and must be strictly construed, notice will be deemed sufficient if it brings theparticular condition which allegedly caused the subject accident to the attention of the authoritiesdesignated to receive notice (seeAlexander v City of New York, 59 AD3d 650 [2009]; Almadotter v City of New York, 15AD3d 426, 427 [2005]; Gorman vTown of Huntington, 12 NY3d 275 [2009]).[*2]
Contrary to the Town's contention, the Supreme Courtproperly denied its motion for summary judgment dismissing the complaint on the ground that itdid not have prior written notice of the defective condition on South Ocean Avenue whichallegedly caused the injured plaintiff's accident. The Town failed to make a prima facie showingof its entitlement to judgment as a matter of law because its own evidentiary submissions revealthat it received a prior letter of complaint describing defective conditions on South OceanAvenue, and requesting that the roadway be repaved. Whether the notice provided by this letterencompassed the particular condition which allegedly caused the subject accident is an issue offact which should await resolution at trial (see Massey v City of Cohoes, 35 AD3d 996 [2006]; Faccini vCordish & Assoc., 300 AD2d 1139, 1140 [2002]; Brooks v City of Binghamton, 55AD2d 482, 483-484 [1977]).
Furthermore, the Supreme Court providently exercised its discretion in granting theplaintiffs' cross motion for leave to amend their notice of claim in order to correct the date of theaccident. "General Municipal Law § 50-e (6) authorizes a court, in its discretion, to grantleave to serve an amended notice of claim where the error in the original notice of claim wasmade in good faith, and where the other party has not been prejudiced thereby" (Gatewood v Poughkeepsie Hous. Auth.,28 AD3d 515 [2006]; seeMatter of Figgs v County of Suffolk, 54 AD3d 671 [2008]). There is no claim here thatthe error in setting forth the accident date in the notice of claim was made in bad faith.Moreover, the error was corrected by the injured plaintiff at his General Municipal Law §50-h hearing, at which the Town's attorney demonstrated his awareness, in any event, of thecorrect date of the accident. Finally, we agree with the Supreme Court that the Towndemonstrated no prejudice from the error and in light of the nature of the defect and the injuredplaintiff's accident, there is no basis to presume prejudice (see Gatewood v PoughkeepsieHous. Auth., 28 AD3d at 515; Hudson v New York City Tr. Auth., 19 AD3d 648, 649 [2005]; Power v Manhattan & Bronx SurfaceOperating Auth., 16 AD3d 655, 656 [2005]). Skelos, J.P., Fisher, Leventhal and Lott,JJ., concur.